W.C. No. 4-474-058Industrial Claim Appeals Office.
December 2, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which determined the claimant has no permanent medical impairment. We remand the matter to determine whether the claimant is entitled to preparation of a transcript.
The ALJ entered the order on August 30, 2002. The claimant filed a petition to review on September 13, 2002, and requested preparation of a transcript. On October 3, 2002, the court reporter faxed a letter to claimant’s counsel requesting a deposit within 7 days. On October 28, 2002, a legal technician for the Division of Administrative Hearings (DOAH) mailed a letter to claimant’s counsel stating that because the deposit was not paid a transcript would not be prepared. Further, because both parties had already filed briefs, the legal technician stated the file would be forwarded to the ALJ for review. On October 28, 2002, the ALJ “green-sheeted” the matter to us for appellate review.
The file was received in this office on October 30, 2002. On November 4, 2002, we received a motion for extension of time to secure the transcript which the claimant filed with DOAH. The motion alleges that claimant’s counsel overlooked the court reporter’s October 3 letter and failed to pay the deposit because counsel was busy in trial and “facing a massive case backlog.” The motion requested additional time to pay for and secure the transcript. Apparently, neither the ALJ nor DOAH took any action on the motion and it was forwarded to this office. On November 11, 2002, claimant’s counsel sent a letter to this office requesting that our administrative staff delay submitting the matter for review until the motion was ruled on by the ALJ. We conclude the matter must be remanded for a determination concerning whether or not the claimant is entitled to preparation of the transcript.
When a transcript is ordered as part of the record on appeal, the ALJ may not rule on the petition to review until the transcript is completed and lodged. Section 8-43-301(3), C.R.S. 2002. The party requesting the transcript must make arrangements for payment to the reporter. Section 8-43-301(2), C.R.S. 2002.
Rule of Procedure VII (C)(2), 7 Code Colo. Reg. 1101-3 at 10, provides as follows:
When arrangements to pay for a transcript have not been made with a court reporter on a timely basis, the court reporter shall notify the Division. Upon such notification, an administrative law judge or the director may determine, after reasonable notice to the parties, that the order of the transcript has been withdrawn. An administrative law judge or the director may then issue a briefing schedule pursuant to § 8-43-301(4), C.R.S.
Under this rule an ALJ is to determine whether a request for transcript has been withdrawn because of failure to arrange for payment to the reporter. Further, an ALJ may make that determination only after reasonable notice that the ALJ intends to make the decision. The obvious purpose of this requirement is to afford the parties an opportunity to request an extension of time to pay for the transcript or show good cause why payment was not timely made. See Koivu v. Fisher Chevrolet, Inc.,
W.C. No. 4-424-397 (October 16, 2002).
Here, there is no evidence in the file that the parties were ever notified that an ALJ intended to consider whether the request for transcript was withdrawn. Moreover, it appears the determination that the request for transcript was withdrawn was made by a legal technician, not an ALJ. Under these circumstances, the matter must be remanded to the DOAH for compliance with Rule VII (C)(2), and a determination of whether the claimant is entitled to preparation of a transcript.
IT IS THEREFORE ORDERED that the matter is remanded to the DOAH for further proceedings consistent with the views expressed herein. Once the requisite actions are completed the matter may be retransmitted for our review.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed December 2, 2002 to the following parties:
Jerry Halsey, 7065 E. Leetsdale Dr., Apt. J31, Denver, CO 80224
Candace O’Rourke, University of Colorado Hospital, 4200 E. 9th Ave., Campus Box A028, Denver, CO 80262
Legal Department, Pinnacol Assurance — Interagency Mail
D. Dale Sadler, Esq., One DTC, Suite 690, 5251 DTC Pkwy., Greenwood Village, CO 80111 (For Claimant)
Mark H. Dumm, Esq., and Michelle N. Young, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
By: A. Hurtado